It turns out that in some cases, the Trump administration can behave just like its predecessors.
President Donald Trump has been rightly accused of smashing precedents as the commander-in-chief, and many of his subordinates have behaved, spoken and tweeted in ways unlike anything we’ve seen before. Some of this unorthodox behavior is indeed troubling. But other decisions, including his willingness to buck the foreign-policy establishment on issues like the status of Jerusalem and trying to hold the Palestinian Authority responsible for its support of terrorism, have been a long overdue breath of fresh air.
On one significant legal issue, however, it appears that Trump has gone establishment. Yet rather than cheer it as a rare sign of maturity or stability, this decision is a regrettable reversion to the same sort of failed policies of the past that Trump has rejected in other instances.
The issue is the decision of the U.S. Solicitor General to side with the Palestine Liberation Organization in a dispute with those seeking to hold it accountable for its crimes as required by U.S. law. American victims of Palestinian terror attacks, as well as the family members of those who were killed in such attacks, originally filed the case of Sokolow v. Palestine Liberation Organization in 2004. They sued under the Anti-Terrorism Act passed by Congress in 1992, which allows U.S. nationals to sue international terror groups for damages in U.S. federal district courts.
The Sokolow case stems from six specific shootings and bombings carried out by Palestinians in Jerusalem from 2002 to 2004 during the second intifada terrorist war of attrition orchestrated by the Palestinian Authority—the political arm of the PLO. A jury in a federal district court heard voluminous evidence of the gruesome crimes carried out by the Palestinians, as well as the clear proof that these acts were committed at the behest of their leaders. The jury ruled for the survivors and their families in a 2015 decision that awarded them $656 million in damages.
But a year later, an appeals court overturned that decision when it ruled that U.S. courts didn’t have jurisdiction in the case and claimed that the Palestinians hadn’t specifically targeted Americans. That caused the terrorists to cheer, and it brought great relief to the Obama administration, which had opposed any effort to punish the PLO. It felt that anything that undermined the P.A. was, by definition, a blow to the cause of peace. Like all previous administrations, Obama and his team regarded the Anti-Terrorism Act to be an attempt by Congress to interfere with the executive branch’s ability to conduct foreign policy.
That stand, in addition to the appellate ruling, contradicts the plain intent of the law, which was crafted specifically to deal with instances of international terror.
Given Trump’s tough talk on terror—reportedly, he yelled at and pounded the table when he demanded that P.A. leader Mahmoud Abbas stop paying salaries and pensions to terrorists and their families—you would think he would reject the Obama position. But that’s not what happened.
The Solicitor General is asking, along with the PLO’s lawyers, that the U.S. Supreme Court not hear the terror victims’ appeal. The government’s arguments are highly technical in that they are asking the court to consider the PLO a “person,” and arguing that the two PLO offices in the United States don’t constitute enough of a reason to allow the victims to sue. If the high court heeds the Solicitor General’s plea, then not only will the PLO be off the hook for the damages, but it will effectively render the terrorism act null and void.
That has raised a storm of protest from some pro-Israel activists, including the Zionist Organization of America, which has vociferously protested the stand of the Justice Department.
Why is Trump betraying his principles in this fashion?
It’s hard to give a definitive answer for any decision made by the Trump administration. It’s entirely possible that Trump—an absentee president who is allergic to deep dives into procedure, details and the nuts-and-bolts of government decision-making—had no idea that his administration was going to side with the PLO.
That may also be true of U.S. Attorney General Jeff Sessions, who when pressed about the issue during the course of an interview with Breitbart.com’s Joel Pollack seemed not to be familiar with the case.
The ominous silence of the State Department, which has always been opposed to efforts to hold the Palestinians accountable, on the case may also indicate that its influence—and those within the executive branch that always oppose allowing Americans to sue foreign governments—may be at work.
Then again, Trump’s lingering desire to do broker the “ultimate deal” of a Middle East peace agreement—a task he has delegated to son-in-law and senior adviser Jared Kushner—may also be behind a decision that will help keep the P.A. happy and not threaten its finances.
But whether you want to blame this on Trump’s massive ego, his son-in-law’s vain hopes for negotiations (which every sensible person knows are already doomed because of the P.A.’s intransigent refusal to end and admit defeat in their century-old war on Zionism) or the loyalty of the permanent bureaucracy in the Justice and the State departments to the failed policies of the past, the fact remains that this is a terrible mistake.
The Solicitor General’s stand is contradicted by the efforts of many members of both parties in the House and the Senate to stand up for the Anti-Terrorism Act. The critics are pointing out that if the PLO prevails, then it will reinforce exactly the same violent policies that make peace impossible.
That isn’t acceptable and shouldn’t be allowed.
Trump and Sessions need to wake up to the implications of this decision and reverse it. If they don’t—or if the high court allows the reversal of the jury’s decision to stand—it will ring the death knell for any accountability of terror in the courts.
Jonathan S. Tobin is editor in chief of JNS — the Jewish News Syndicate. Follow him on Twitter at: @jonathans_tobin.